Citation Nr: 0626672
Decision Date: 08/28/06 Archive Date: 09/06/06
DOCKET NO. 04-06 512 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for a low back
disability.
3. Entitlement to a disability evaluation greater than 20
percent for residuals of a gunshot wound with neuropathy of
left radial and medial nerves.
4. Entitlement to a compensable disability evaluation for an
upper left arm scar from a gunshot wound.
5. Entitlement to a compensable disability evaluation for a
chest scar from a gunshot wound.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. M. Ames, Associate Counsel
INTRODUCTION
The veteran had active service from August 1964 to April
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from April 2002 and January 2003 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in St. Petersburg, Florida.
FINDINGS OF FACT
1. The medical record, as a whole, does not indicate that
the veteran has a diagnosis of PTSD.
2. The veteran's low back disability was not caused or
aggravated by his active military service from August 1964 to
April 1970.
3. The veteran does not have paralysis of the median or
radial nerve sufficient to warrant a compensable disability
evaluation.
4. The veteran's upper left arm scar does not cause
limitation of motion.
5. The veteran's chest scar does not cause limitation of
motion.
CONCLUSIONS OF LAW
1. Service connection for PTSD is not established.
38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.304(f) (2005).
2. Service connection for a low back disability is not
established. 38 U.S.C.A. §§ 1110, 5107 (West 2002);
38 C.F.R. § 3.303 (2005).
3. The rating for residuals of a gunshot wound with
neuropathy of the left radial and medial nerves is protected
by regulation because it has been in effect for over 20
years. 38 C.F.R. § 3.951(b) (2005).
4. The criteria for a compensable rating for scar on the
upper left arm have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.118, Diagnostic
Code (DC) 7805 (2002 and 2005).
5. The criteria for a compensable rating for a chest scar
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38
C.F.R. §§ 4.1-4.7, 4.21, 4.118, DC 7805 (2002 and 2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease that was incurred or aggravated during
active military service. 38 U.S.C.A. § 1110 (West 2002);
38 C.F.R. § 3.303(a) (2005). Service connection may be
demonstrated either by showing direct service incurrence or
aggravation or by using applicable presumptions, if
available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir.
1994).
Direct service connection generally requires evidence of a
current disability with a relationship or connection to an
injury or disease or some other manifestation of the
disability during service. Boyer v. West, 210 F.3d 1351,
1353 (Fed. Cir. 2000). A disorder may be service connected
if the evidence of record reveals that the veteran currently
has a disorder that was chronic in service or, if not
chronic, that was seen in service with continuity of
symptomatology demonstrated subsequent to service. 38 C.F.R.
§ 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).
Evidence that relates the current disorder to service must be
medical unless it relates to a disorder that may be
competently demonstrated by lay observation. Savage, 10 Vet.
App. at 495-97. For the showing of chronic disease in
service, there is a required combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." 38 C.F.R. § 3.303(b).
Disorders diagnosed after discharge may still be service
connected if all the evidence, including relevant service
records, establishes that the disorder was incurred in
service. 38 C.F.R. § 3.303(d).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical evidence do not constitute competent medical
evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination,
the benefit of the doubt is resolved in favor of the veteran.
38 U.S.C.A. § 5107(b).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with VA regulations; a
link, established by medical evidence, between current
symptoms and an in-service stressor; and credible supporting
evidence that the claimed in-service stressor occurred. If
the evidence establishes that the veteran engaged in combat
with the enemy and the claimed stressor is related to that
combat, in the absence of clear and convincing evidence to
the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b)
and 38 C.F.R. § 3.304 (regarding combat veterans); Cohen v.
Brown, 10 Vet. App. 128 (1997).
The diagnostic criteria, including those related to
stressors, set forth in The American Psychiatric Association:
Diagnostic And Statistical Manual Of Mental Disorders, (4th
ed. 1994) (DSM- IV) for mental disorders have been adopted by
the VA. 38 C.F.R. § 4.125. According to these criteria, a
diagnosis of PTSD requires that a veteran be exposed to a
traumatic event, and that he experience a number of specified
current symptoms. The traumatic event, or stressor, involves
experienced, witnessed, or being confronted with an event or
events that involved actual or threatened death or serious
injury, or a threat to the physical integrity of self or
others. In addition, the response must involve intense
feelings of fear, helplessness, or horror.
If the veteran did not engage in combat with the enemy, or
the veteran did engage in combat but the alleged in-service
stressor is not combat related, the veteran's lay testimony,
by itself, is not sufficient to establish the occurrence of
the alleged in-service stressor. Instead, the record must
contain credible supporting evidence which corroborates the
veteran's testimony or statements. Cohen, 10 Vet. App. at
147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996).
The first requirement for any service connection claim is
competent evidence of existence of a current disability.
Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 2 Vet. App.
492, 494 (1992).
The veteran does not have a diagnosis of PTSD. At a February
2004 VA general medical examination, the physician noted that
the veteran's short term memory was impaired. The veteran
reported feeling unable to carry conversations with his
peers. He was not diagnosed with PTSD, providing evidence
against this claim.
In February 2004, the veteran underwent a VA psychiatric
evaluation. The examiner stated that the veteran's behavior
was appropriate. His judgment, orientation, and awareness
were normal. His affect was full. His mood was sad, but he
denied suicidal ideation. He was taking an antidepressant at
the time of the examination. The examiner diagnosed the with
an adjustment disorder due to his chronic back pain. No
diagnosis of PTSD was provided.
In February 2002, the veteran underwent an initial evaluation
for PTSD. He denied being hospitalized for psychiatric
treatment and other than undergoing an evaluation in 1978, he
denied any psychiatric or psychological treatment.
Upon examination, the veteran's mood was euthymic. His
attention, concentration, and short term memory were intact.
Long-term memory, assessed by naming past presidents, was
poor. His long-term memory was also poor with respect to
events in his past. The veteran's fund of knowledge was poor
and he was not able to do simple calculations mentally. He
denied visual and auditory hallucinations and suicidal or
homicidal ideation. His insight was adequate and his social
judgment was good. The veteran reported a history of violent
behavior.
Subjectively, the veteran complained of sleeping problems due
to pain and poor appetite. He rated his feelings of
depression as a 4 on a scale of 1 (least depressed) to 10
(most depressed), and the examiner noted that he did not
appear depressed. His anxiety was intermittent and he denied
feelings of fear or anger. He had no difficulty discussing
his experiences in Vietnam and he denied any instances of
avoidant behavior or re-experiencing traumatic events from
his active military service.
The examiner found that the veteran did not meet the criteria
for any psychiatric diagnosis.
With regard to the veteran's own opinion that he has symptoms
of PTSD, the veteran does not have the medical expertise to
self-diagnose. See Bostain v. West, 11 Vet. App. 124, 127
(1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge").
As the veteran does not have a diagnosis of PTSD, the claim
must be denied.
With regards to the veteran's claim for a low back
disability, in February 2004, he was diagnosed with
osteoarthritis of the lumbar spine with spinal stenosis and
severe low back pain. Therefore, he has a current disability
for VA purposes Boyer, 210 F.3d at 1353; Brammer, 2 Vet.
App. at 494 (1992).
At his January 2003 peripheral nerves examination, the
examiner noted that the veteran fell from a cliff in May 1978
and severely injured his back. The examiner opined that the
veteran's severe pack pain is "related entirely to the
civilian post-service injury rather than the back pain which
resulted briefly following a tank fall in Vietnam." The
medical report provides highly probative evidence against
this claim.
A February 2002 VA PTSD evaluation showed that the veteran
fell 70 feet from a cliff in May 1978, years after leaving
service. He sustained injuries to his thoracic vertebrae at
T7-T12, with a hematoma.
At an October 2001 VA physical examination, the veteran
reported that he fell into a creek area while in service, and
injured his back. However, the examiner did not conclude
that the veteran's back pain was attributable to his reported
fall.
A medical record from June 1979 shows that the veteran was
treated for chronic back pain. The record indicates that the
pain dated back to an injury he sustained when he fell off a
cliff in May 1978. The physician stated that since the time
of his fall, the pain had been "fairly constant."
In January 1979, the veteran was treated for back pain. The
physician attributed the pain to his fall from a cliff in May
1978, noting that the pain was in a very focal area since his
fall.
In October 1978, the veteran was treated for back pain. The
doctor noted that the veteran fell off a cliff in May 1978
and that his complaints were out of proportion to the
physical findings. The veteran had x-rays taken of his back
and they revealed no fractures. The veteran was referred to
a neurologist, who reported that his neurological examination
was within normal limits.
A September 1978 medical record shows that he veteran was
treated for thoracic back pain due to an injury in May 1978.
The veteran reported having a numbness in the center of his
back since he fell in May 1978. The doctor opined that the
veteran's symptoms seemed disproportionate to the medical
work up.
The Board finds that the examinations and facts cited above
are entitled to great probative weight and that they provide
very negative evidence against the veteran's claim. The
veteran's post-service medical records, especially those from
1978 and 1979, indicate that the veteran's back pain is
attributable to his 70 foot fall from a cliff in May 1978,
eight years after leaving service.
One medical record refers to an in-service injury. At his
February 2004 psychiatry consult, the examiner noted that the
veteran had a history of chronic low back pain since 1969
when he was injured in service. It is clear that the
statements referring to the veteran falling in service
reflects no more than a recording of medical history provided
by the veteran, rather than an endorsement of that history as
demonstrating an in-service etiology of the disorder.
Medical history provided by a veteran and recorded by an
examiner without additional enhancement or analysis is not
competent medical evidence. LeShore v. Brown, 8 Vet.
App. 406, 409 (1995). Therefore, the statement does not
provide evidence in favor of the veteran's claim.
The veteran's service medical records (SMRs) are negative for
diagnosis of or treatment for a back disability. The
veteran's induction examination noted that he had scoliosis,
with curvature of less than 1 inch to the right. Even if VA
were to assume that the veteran fell from a tank or into a
creek while in service, there is no competent medical
evidence of record to show that the veteran's current back
pain is due to that fall. In fact, the post-service medical
records show clearly that his back pain was related to his
May 1978 fall from a cliff.
The Board finds that the preponderance of the evidence is
against service connection for a low back disability.
38 U.S.C.A. § 5107(b). The appeal is denied.
With regard to the increased rating claims, disability
ratings are determined by applying the criteria established
in VA's Schedule for Rating Disabilities, which is based upon
the average impairment of earning capacity. Individual
disabilities are assigned separate diagnostic codes.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20
(2005).
Where an increase in an existing disability rating based upon
established entitlement to compensation is at issue, the
present level of disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55 (1994). If two
evaluations are potentially applicable, the higher one will
be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7. When reasonable doubt arises as to the degree of
disability, such doubt will be resolved in the veteran's
favor. 38 C.F.R. § 4.3.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the veteran, as well as the entire history of the
veteran's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).
The veteran asserts that he is entitled to a higher rating
for his service-connected residuals of a gunshot wound with
neuropathy of the left radial and median nerves, currently
evaluated as 20 percent disabling under DC 8514, paralysis of
the musculospiral (radial) nerve. 38 C.F.R. § 4.124a.
Under DC 8514, a 20 percent rating is warranted for the minor
nerve where there is mild or moderate incomplete paralysis of
the musculosprial nerve. A 40 percent rating is warranted
for the minor nerve when there is severe incomplete paralysis
of the musculospiral nerve. The veteran's medical records
indicate that his left arm is his minor arm.
The words "slight," "moderate" and "severe" as used in the
various diagnostic codes are not defined in the VA Schedule
for Rating Disabilities. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence, to the
end that its decisions are "equitable and just." 38 C.F.R. §
4.6. It should also be noted that use of terminology such as
"severe" by VA examiners and others, although an element of
evidence to be considered by the Board, is not dispositive of
an issue. All evidence must be evaluated in arriving at a
decision regarding an increased rating. 38 C.F.R. §§ 4.2,
4.6.
The veteran underwent a VA peripheral nerves examination in
January 2003. The examiner found no evidence of injury to
the brachial plexus or of the major blood vessels of the
upper arm. The motor area affected by the gunshot wound
involved three major nerves, including the median,
musculospiral, and radial nerves. The examiner found that
all three nerves functioned in a normal manner and there was
no evidence of any motor disturbance. There was no evidence
of paralysis, neuritis, or neuralgia. The motor strength of
the veteran's left hand and arm were normal. There was no
evidence of any nerve impingement and no evidence of nerve
entrapment of the left shoulder or of decreased function of
the left median or radial nerves. The examiner diagnosed the
veteran with a gunshot wound of the left shoulder without any
major brachial plexus or circulatory injuries. The examiner
concluded that there was minimal hypoesthesia, although the
veteran was able to feel in all areas and discerned pinpricks
over the CAT1 dermatome.
This report provides highly probative and highly negative
evidence against this claim, indicating that the veteran does
not meet the requirements of the current evaluation.
The veteran's 20 percent rating was granted on April 11,
1970. The 20 percent rating has been continued since that
date. As such, the rating is protected by regulation because
it has been in effect for over 20 years. 38 C.F.R. §
3.951(b) (2005). The veteran's current nerve disability from
the gunshot wound does not meet the criteria for a 20 percent
evaluation, since there is no evidence of incomplete
paralysis of any nerve due to the gunshot wound. Given that
it does not meet the criteria for a 20 percent evaluation, it
does not meet the criteria for a 40 percent evaluation. The
appeal is denied.
With regards to the veteran's claims for his scars, during
the pendency of this appeal, regulatory changes amended the
VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2005),
including, effective August 30, 2002, the rating criteria for
evaluating skin disorders, such as the veteran's scars. See
67 Fed. Reg. 49,590-49,599 (July 31, 2002). Therefore, the
Board will evaluate the veteran's claim under both the old
criteria in the VA Schedule for Rating Disabilities and the
current regulations. However, the VA's Office of General
Counsel determined in an opinion that the amended rating
criteria, if favorable to the claim, can be applied only for
periods from and after the effective date of the regulatory
change. The Board can apply only the prior regulation to
rate the veteran's disability for periods preceding the
effective date of the regulatory change. See VAOPGCPREC 3-00
(Apr. 10, 2000).
The veteran asserts that he is entitled to compensable
ratings for his service-connected upper arm and chest scars,
currently evaluated under DC 7805, scars, other. 38 C.F.R.
§ 4.118.
The Board notes that there is no evidence that the veteran's
scars are painful to warrant application of DC 7804 (scars,
superficial, painful on examination). There is no evidence
that the scars exceed six square inches to warrant
application DC 7801 (scars, other than head, face, or neck,
that are deep or that cause limited motion). There is no
evidence that the veteran's scars occupy an area of 144
square inches or greater to warrant application of DC 7802
(scars, other than head, face, or neck, that are superficial
and do not cause limited motion). There is no evidence to
show that the veteran's scars are unstable to warrant
application of DC 7803 (scars, superficial, unstable). See
Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic
code should be upheld if supported by explanation and
evidence).
The old and new rating criteria for DC 7805 are identical,
therefore, the Board may also consider these amendments
without first determining whether doing so will be
prejudicial to the veteran. Bernard v. Brown, 4. Vet. App.
384, 392-94 (1993).
Both the old and new criteria instruct the rater to rate
scars under DC 7805 on limitation of function of the affected
part.
The veteran underwent a VA examination in February 2004. The
examiner noted that the veteran sustained a gunshot would
through the left pectoral area, which exited through the
posterior left upper arm just below the humeral head at the
soft tissue. There was no major nerve damage or vascular
injury. The examiner noted that the veteran had no permanent
injury that affected the use of the left arm from his gunshot
wound. There was no evidence at the February 2004
examination that the veteran's scars were painful or that
they limited his motion in any way.
At his January 2003 VA peripheral nerves examination, the
examiner noted that the bullet's point of entry was the left
shoulder, external to the chest and that the exit would was
in the triceps area of his left upper arm. The entrance
wound measured 7 centimeters and the exit wound was 4
centimeters.
The veteran reported that approximately four times per year,
for about 5 seconds, he had a shooting pain from the left
cervical area down to the shoulder. He also complained of
minimal numbness over his left thumb and the thumb side of
his forearm up to almost his elbow over a thin area. He
reported that the numbness caused him no difficulties.
Upon examination, the examiner found no evidence of injury to
the brachial plexus or the major blood vessels of the left
arm. The examiner found no evidence of motor disturbance.
At most, he had a minimal hypoesthesia of the CAT1 dermatome
of the left arm. The examiner stated that there was no
evidence of any nerve impingement, nor was there evidence to
indicate any pain from the areas affected by the scars.
There was no indication that the veteran's motion was limited
in any way.
In his July 2002 claim, the veteran asserted that his scars
were painful. However, there is no competent medical
evidence of record to show that the veteran experiences pain
due to his scars.
In April 2002, the veteran was treated at a VA Medical Center
(VAMC) for low back pain, and the examiner noted that the
veteran had decreased pinprick sensation on his left upper
extremity. The examiner did not mention the veteran's scar
as the reason for this decreased sensation, nor did the
examiner report that the veteran's range of motion was
affected by the scars.
The Board finds that the facts and examinations cited above
are entitled to great probative weight and that they provide
evidence against the claims. Reviewing the evidence, the
Board finds that the overall disability picture for the
veteran's left upper extremity and chest scars does not more
closely approximate a compensable rating. 38 C.F.R. § 4.7.
Therefore, the preponderance of the evidence against this
claim. 38 C.F.R. § 4.3.
The Duty to Notify and the Duty to Assist
Review of the claims folder reveals compliance with the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.
§ 5100 et seq. See 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by letters
dated in October 2002, June 2003, and 2001 letter from an
unspecified month, as well as information provided in the
December 2003 statement of the case (SOC) and July 2004
supplemental statement of the case (SSOC), the RO advised the
veteran of the evidence needed to substantiate his claims and
explained what evidence VA was obligated to obtain or to
assist the veteran in obtaining and what information or
evidence the veteran was responsible for providing. In
addition, the December 2003 SOC and the July 2004 SSOC
include the text of the regulation that implements the notice
and assistance provisions from the statute. Thus, the Board
finds that the RO has provided all notice required by the
VCAA. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16
Vet. App. 183 (2002).
The Board observes that the RO issued the VCAA notice in
2001, prior to the adverse determination on appeal.
Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO
did not specifically ask the veteran to provide any evidence
in his possession that pertains to the claim. Id. at 120-21.
However, the Board is satisfied that the three VCAA notices
and the December 2003 SOC and the July 2004 SSOC otherwise
fully notified the veteran of the need to give VA any
evidence pertaining to his claim, such that there is no
prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384,
392-94 (1993). See Sutton v. Brown, 9 Vet. App. 553 (1996);
see also 38 C.F.R. § 20.1102 (harmless error).
The Board notes that the veteran was not informed that a
disability rating and effective date would be assigned if his
claims were granted. However, since the veteran's claims are
being denied, no disability rating or effective date will be
assigned. Therefore there can be no possibility of any
prejudice to the veteran. See Dingess v. Nicholson, 19 Vet.
App. 473 (2006). The Board finds that any deficiency in the
notice to the veteran or the timing of these notices is
harmless error.
With respect to the duty to assist, the RO has secured the
veteran's service medical records, service personnel records,
VA medical records, private medical records, and VA
examinations. As there is no other indication or allegation
that relevant evidence remains outstanding, the Board finds
that the duty to assist has been met. 38 U.S.C.A. § 5103A.
ORDER
Service connection for PTSD is denied.
Service connection for a low back disability is denied.
An increased rating for the residuals of a gunshot wound with
neuropathy of left radial and medial nerves is denied.
A compensable disability evaluation for an upper left arm
scar from a gunshot wound is denied.
A compensable disability evaluation for a chest scar from a
gunshot wound is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs